United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, UNITED STATES DISTRICT JUDGE.
Robertson, a prisoner without a lawyer, is proceeding in this
case against two prison doctors on three groups of claims.
ECF 16 at 3-4. The first claim alleges the defendants lied to
a guard on March 7, 2016, about a bottom bunk medical pass.
The second claim alleges they caused him unnecessary pain by
preventing him from receiving Prednisone and Ultram from July
20, 2017, until August 24, 2017. The third claim alleges they
retaliated against him by refusing to provide medical
treatment because he filed a grievance against them on March
is a threshold issue about claim two raised by the
defendants' summary judgment motion: did Robertson
properly exhaust his administrative in his claim that the
defendants prevented him from receiving medications in July
and August 2017? ECF 41. The defendants concede that
Robertson properly exhausted his administrative remedies
related to his first and third claims which both arose in
2016. Id. Therefore, the only issue presently before
me is whether Robertson exhausted his administrative remedies
related to events in July and August 2017.
start with the applicable law. Prisoners are prohibited from
bringing an action in federal court with respect to prison
conditions “until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a).
“[A] suit filed by a prisoner before administrative
remedies have been exhausted must be dismissed; the district
court lacks discretion to resolve the claim on the merits,
even if the prisoner exhausts intra-prison remedies before
judgment.” Perez v. Wisconsin Dep't of
Corr., 182 F.3d 532, 535 (7th Cir. 1999). There's no
wiggle room here; the Seventh Circuit takes a “strict
compliance approach to exhaustion.” Dole v.
Chandler, 438 F.3d 804, 809 (7th Cir. 2006). Thus,
“[t]o exhaust remedies, a prisoner must file complaints
and appeals in the place, and at the time, the prison's
administrative rules require.” Pozo v.
McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002).
“[A] prisoner who does not properly take each step
within the administrative process has failed to exhaust state
remedies.” Id. at 1024. Nevertheless,
“[f]ailure to exhaust is an affirmative defense that a
defendant has the burden of proving.” King v.
McCarty, 781 F.3d 889, 893 (7th Cir. 2015).
judgment must be granted when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a). A
genuine issue of material fact exists when “the
evidence is such that a reasonable [factfinder] could [find]
for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). To determine
whether a genuine issue of material fact exists, the court
must construe all facts in the light most favorable to the
non-moving party and draw all reasonable inferences in that
party's favor. Heft v. Moore, 351 F.3d 278, 282
(7th Cir. 2003). However, a party opposing a properly
supported summary judgment motion may not rely merely on
allegations or denials in its own pleading, but rather must
“marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat'l
Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir. 2010).
“[I]nferences relying on mere speculation or conjecture
will not suffice.” Trade Fin. Partners, LLC v. AAR
Corp., 573 F.3d 401, 407 (7th Cir. 2009).
the parties do not dispute either the existence or terms of
the grievance policy. ECF 42 at 3 and ECF 45 at 2. Most
relevant, they agree it has three steps: an informal
grievance, a formal grievance, and a formal appeal. The
defendants argue Robertson did not file a formal appeal about
any medical issues in 2017. Robertson says he has attached
proof he exhausted his administrative remedies.
Schurman is a Grievance Specialist for the Indiana Department
of Correction. She declares under penalty of perjury she has
examined Robertson's grievance records. She declares he
“filed five grievances in 2017, of which three were
regarding medical treatment. However, Mr. Robertson did not
file a formal appeal of any of those medical
grievances.” ECF 42-1 at 3.
response, Robertson argues that “[b]ased upon a
reviewing of the grievances that going be attached to this
motion you the court will see that the Plaintiff Donnell
Robertson has and did exhaust all of his administrative
remedies that are required to do.” ECF 45 at 4.,
Robertson attached 27 pages of grievance records documenting
three grievances numbered: 91450 (ECF 41-1 at 1-8, 18, and
20), 93939 (ECF 41-1 at 1, 9-16, and 18), and 94593 (ECF 41-1
at 1, 18-19, 21-28). All of these grievances are fully
exhausted. That is to say in all three instances, Robertson
followed and completed the grievance process by filing a
formal appeal. The problem is that none of these grievances
are about events which occurred in July or August 2017.
Indeed, they all pre-date the Summer of 2017. The response to
the formal appeal of Grievance 91450 was issued May 23, 2016.
ECF 41-1 at 8. The response to the formal appeal of Grievance
93939 was issued December 14, 2016. ECF 41-1 at 16. And the
response to the formal appeal of Grievance 94593 was issued
February 21, 2017. ECF 41-1 at 26. As such, none of those
grievances are relevant to whether he exhausted his
administrative remedies for claims which arose in July and
August 2017. Because Robertson has not provided any evidence
to the contrary, the undisputed evidence is that he did not
exhaust his administrative remedies for the claims arising in
July and August 2017. Therefore summary judgment must be
granted as to those claims. But as noted above, because the
summary judgment did not address his two claims arising in
2016, Robertson may continue to proceed on those.
Roberson filed a motion objecting to the defendants'
reply brief. Robertson argues the reply brief delayed the
case and provided no new information. Nevertheless, N.D. Ind.
L.R. 56-1(c) provides for filing a reply brief and there was
nothing improper about the defendants having done so.
these reasons, the court:
DENIES the motion to object (ECF 53);
GRANTS the partial motion for summary judgment (ECF 41);
DISMISSES WITHOUT PREJUDICE the claims against Noe J.
Marandet, M.D., and Kimberly Marand Myers, M.D., for
preventing Donnell Robertson from receiving Prednisone and
Ultram from July 20, 2017, until August 24, 2017;
REMINDS the parties Donnell Robertson is proceeding in this